Volume 47 (2010)

Volume 47 (2010) / Issue 3

Elke Cloots, 'Germs of Pluralist Judicial Adjudication: Advocaten Voor de Wereld and Other References from the Belgian Constitutional Court' (2010) 47 Common Market Law Review, Issue 3, pp. 645–672

Abstract

The relationship between Europe’s legal orders is frequently depicted in terms of “constitutional pluralism”. Constitutional pluralists maintain that the EU legal order and the legal orders of the Member States are distinct but interacting, and that they stand in a non-hierarchical relation to one another, allowing regional autonomy. The significance of the pluralist theoretical perspective for judicial adjudication, however, has not been sufficiently assessed. For instance, does constitutional pluralism accommodate or, rather, oppose the supremacy claims currently made by the ECJ and national constitutional courts respectively? And, in the latter case, what alternative decision-making techniques are available to courts facing constitutional issues with an aspect of EU law? What are the consequences for protection of nationally entrenched fundamental rights? Those are the major questions being addressed in this article. Building upon a detailed analysis of three preliminary ruling procedures initiated by the Belgian Constitutional Court, this article purports to formulate some general recommendations to judges who wish to adjudicate in a truly “pluralist” manner. The cases at issue are Advocaten voor de Wereld, Ordre des barreaux francophones et germanophone et al., and Government of the French Community and Walloon Government v. Flemish Government, each of which contains germs of pluralist judicial adjudication.

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ISSN: 0165-0750
ID: COLA2010029